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Code I > Persons > Flashcards

Persons Flashcards

1
Q

natural personality begins

A

at conception if born alive

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2
Q

live birth means

A

respiration or crying

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3
Q

natural personality terminates

A

at death

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4
Q

doctor certifies death when

A

there has been irreversible cessation of spontaneous respiratory and circulatory functions OR if on life support, irreversible total cessation of brain function

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5
Q

juridical declaration of death possible when

A

person went missing in a scenario where death seems certain OR after they have been absent for 5 years

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6
Q

juridical persons

A

are distinct and distinguishable entities

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7
Q

domicile

A

of natural person is place of habitual residence

of juridical person, either state of formation or PPB

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8
Q

domicile test =

A

presence + intent to remain

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9
Q

prerequisites for marriage =

A

absence of a legal impediment
a marriage ceremony
mutual consent of both parties as expressed at the ceremony

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10
Q

possible legal impediments to marriage =

A

an existing marriage

being related by blood within the fourth degree (adopted relatives count BUT relatives by affinity do not)

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11
Q

requirements of a valid marriage ceremony =

A

performed by a third party qualified celebrant (religious authority, members of state judiciary and justices of the peace)
ceremonial formalities: marriage license, 2 witnesses, signed certificate - but absence doesnt nullify marriage

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12
Q

mutual consent at marriage ceremony includes

A

both spouses and celebrant must have been physically present
parties must have verbally expressed consent
no vices: duress (actual and threatened violence); capacity (drunkenness); age (minors under 18 must have consent of parents, minors under 16 must have written permission from juvenile court)
–> if once of vices of consent present, may confirm

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13
Q

annulment of marriage available when

A

there was a defect in the marriage to begin with (retroactive cancellation of marriage, vs. divorce as prospective cancellation)

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14
Q

relatively null marriage

A

exists when vice of consent was present: duress, capacity, age.
if annulled, relatively null marriages produce civil effects of marriage until marriage is declared null by a court
only the person who was affected by the nullity (ie, was under duress) can bring the action for annulment

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15
Q

absolutely null marriage

A

is void ab initio

no civil effects produced ever unless putative spouse doctrine applies

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16
Q

putative spouse doctrine

A

when at least one party entered into a marriage that turned out to be absolutely null in good faith
good faith = honest and reasonable belief that no legal impediment existed to thee marriage
note: firsthand knowledge of the impediment vitiates good faith, being told secondhand and failing to investigate may also vitiate good faith

effect = gives good faith spouse civil effects of marriage

example:When there is bigamy, civil effects continue for the non-bigamous spouse until either (1) there is an official, judicial declaration of nullity or (2) the non-bigamous spouse remarries

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17
Q

spousal support and action for anulment

A

interim spousal support is available for both relatively and absolutely null marriages
final spousal support is only available to spouses in a relatively null marriage, or innocent parties to a putative marriage

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18
Q

duties of spouses during marriage =

A

fidelity, support, and assistance

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19
Q

conflict of laws regarding marriage

A

If marriage was valid where originally contracted, or where parties were first domiciled as a married couple, then marriage is valid in Louisiana unless it violates public policy

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20
Q

marriage terminates at

A

death
judicial determination of nullity
final judgement of divorce

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21
Q

divorce actions available in louisiana are =

A 
102 no fault divorce
103(1) no fault divorce 
fault divorce based on
adultery
abuse
felony conviction
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22
Q

divorce action available when parties still living together

A

102 divorce: “service then separation”

divorcing spouse serves divorcee spouse
then spouses live separately for 180 days if no minor children of the marriage, or 365 if none

then moving party (either) files rule to show cause pleading that (1) the divorce petition was served, (2) that they have been continuously separated (3) for 180/365 days and (4) affidavit

At hearing, moving party places into evidence: petition, return of service of petition, rule to serve cause including affidavit, return of service of rule service, and additional affidavit alleging separation

then divorce is automatically granted by judge

unless parties reconciled

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23
Q

civil effects of no fault divorces

A

102 divorce = community property is terminated at the date of filing the divorce petition, so community property could terminate before separation

103(1) divorce = community terminates at the date of filing the divorce petition, so necessarily after separation.

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24
Q

divorce action available when spouses have been separated

A

103(1) divorce: separation prior to filing divorce

simpler and cheaper than 102 divorce

parties separate for 180 or 365 days, then file divorce petition

then divorce may be granted immediately, but subject to court’s docket.

requirements: separation must be voluntary on part of at least one party – has to be a choice to end the health of the marriage by at least one party (not just going elsewhere to work for 6 months)
procedure: typical suit procedure. default judgement available on 16th day after service of petition

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25
Q

divorce after adultery

A

moving party has burden to show adultery: circumstantial evidence must lead fairly and necessarily to the conclusion that adultery has been committed -
admission of adulterous spouse not sufficient alone; intercourse not necessary

more expensive and confrontational than no-fault divorce

once reconciliation has happened, fault divorce action unavailable

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26
Q

divorce after felony conviction

A

If spouse is convicted of felony AND is sentenced to death or imprisonment at hard labor

Then you can get an immediate divorce, no waiting period

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27
Q

divorce after abuse

A

available with:

proof of physical or sexual abuse of the spouse or a child of one of the spouses, regardless of whether there has been prosecution

when a protective order or injunction was issued during the marriage seeking to protect spouse or a child from abuse after a contradictory hearing or based on a consent decree – then protective order stands in place of evidence hearing during divorce (note protective order could have been issued way back and still works)

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28
Q

defenses to divorce

A

procedural hurdles not met

only substantive defense is reconciliation

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29
Q

reconciliation in divorce context means

A

resuming parties’ life together with mutual intent to resume the marriage (fact analysis)

court must consider all the circumstances – isolated sex does not constitute reconciliation

when a fault-based divorce action was previously available, it becomes extinguished by reconciliation if you know about the fault (adultery) AND forgive or condone it.

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30
Q

actions file-able with divoroce

A

injunction to prevent waste of community property; physical or sexual abuse; harassment against spouse or children

can file child custody and support in same proceeding as divorce

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31
Q

domestic violence proceeding during divoroce

A

Spouse who got an ex parte TRO, must hold contradictory hearing within 21 days,
victim must prove abuse by preponderance of the evidence, hearing can resolve: property and child care issues, as well as relief from harassment and abuse

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32
Q

spousal support is available as =

A

interim and final

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33
Q

interim spousal support awarded on consideration of

A

one spouse has need (income not assets)
other spouse has ability to pay (assets and income considered)
consider any interim or final child support obligation
consider standard of living during marriage

fault is irrelevant

terminates 180 days from judgement of divorce (can be extended additional 180 days if good cause shown)

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34
Q

interim spousal support is intended to

A

maintain the economic status quo

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35
Q

final spousal support

A

MAY be awarded based on
the need of the claiming spouse (assets and income considered)
the ability of the other spouse to pay (complete financial picture)
claiming spouse must be free from fault prior to any action to terminate the marriage

must be claimed within 3 year peremptive period of divorce

note: in fault-based divorce, spousal support is presumed for innocent spouse; same for DV

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36
Q

finding fault in spousal support proceedings

A

claiming spouse bears burden of showing she was free of fault (ie, testimony)
paying spouse attempts to rebut
court’s standard =
conduct was a serious and proximate cause of the separation

includes: abuse, adultery, felony conviction PLUS
habitual intemperance or cruel treatment (not just nagging); abandonment; defamation; attempted murder
violation of marital duties of fidelity, support, assistance

note: provocation or mental illness can be a defense to any of these faults

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37
Q

spousal support determination considerations

A 
TAF CRIEDD 
tax consequences 
age and health of parties 
financial obligations of parties including child support 
rehabilitation 
income and means
earning capacity of both parties 
duration of the marriage
domestic abuse
38
Q

final spousal support capped at

A

1/3 of paying spouse’s net income

except if DV present, then not capped and cab be paid as lump sum

liberative prescription of 5 years to collect arrears

39
Q

modification of final spousal support

A

may be modified if circumstances of either party materially changes
will be terminated if has become unnecessary

remarriage of the paying spouse doesnt constitute a change of circumstance per se

40
Q

contributions to education and training

A

seperate claim from spousal support

test = financial contribution to spouse’s education and training + that increased spouse’s earning power + to the extent that spouse did not benefit during marriage

consider also:
did paying spouse expect a shared financial benefit?
what was the degree of detriment suffered in making these contributions?
magnitude of benefit received by recipient spouse?

41
Q

primary consideration in every custody proceeding

A

the best interests of the child

42
Q

factors that bear on the best interest of the child in establishing and modifying custody rulings:

A

PAPA HELPS CHAMP

potential for abuse
abusive history of a party
prior relationships
ability to nurture 
health
emotional ties to child
location
preference of child (esp over 12)
stability
cooperation with other party
history
ability to provide (not financial)
moral fitness
past caregiver
43
Q

to modify a custody decree

A

if custody established by consent degree:
- then petitioning parent must show there has been a material change in circumstances AND the proposed modification is in the best interest of the child

if by considered decree:

  • change of circumstances is so deleterious to the best interest of the child as to justify a modification of the custody decree OR
  • by clear and convincing evidence that the harm caused by a change in environment is substantially outweighed by its advantages to the child
44
Q

hierarchy of custody arrangements

A
  1. in accordance with the agreement of the parents (still review for BIOC tho)
  2. parental joint custody (not to be awarded if parents are engaged in continuous acrimony and conflict). goal of physical custody allocation = assure frequent and continuing contact with both parents. must also designate a domiciliary parent.
  3. parental sole custody. can be awarded if clear and convincing evidence shows is in BIOC
  4. nonparent custodian. only awarded if nonparent can show substantial harm to child if custody is awarded to parent
45
Q

parents who dont get custody still may attain

A

VISITATION
parent entitled to it unless, after a hearing, the court finds that visitation would not be in the BIOC
OR
if the natural parent’s felony rape led to the conception of the child

46
Q

grandparents visitation

A

available if parents are not living as a couple (either unmarried living apart or married and filed for divorce)
then grandparents can be granted visitation if in BIOC

MAY ALSO obtain visitation if the parent of grandchild is deceased/interdicted/incarcerated (also parent’s siblings)

47
Q

other relatives (including former step parents) visitation

A

available if parents are not living as a couple (either unmarried living apart or married and filed for divorce)
must show extraordinary circumstances
(includes de jure that the parent is an addict)

court must consider =
Parents fundamental constitutional right to make decisions regarding their children, and presumption that a fit parent will act in child’s best interest
Length and quality of the prior relationship between child and relative seeking visitation
Whether child is in need of guidance, enlightenment, or tutelage that can be best provided by this relative
The preference of the child
The mental and physical health of the child and relative

48
Q

if one parent seeking custody or visitation has a history of family violence, then

A

then abusive parent is presumed to recieve only supervised visitation

definition of family violence = one incident that caused serious bodily harm or 2+ instances of family violence
-may be rebutted by successful completion of a treatment program

proof of sexual abuse completely bars custody and visitation

49
Q

in a 102 divorce, either couple may file the rule to show cause within

A

180 or 365 days of SERVICE of the petition on the other spouse

50
Q

proper venue to change custody arrangement

A

may file in domiciliary parent’s parish
OR
parish where order initially issued

51
Q

emergency custody available?

A

yes, on a showing of immediate and irreperable injury is imminent – may get ex parte custody order for 30 days

52
Q

remedies available to enforce compliance with custody order

A

contempt actions can be brought against parent who fails to exercise OR fails to allow custody or visitation
prevailing parent to recieve actual expenses, counseling expenses, attorneys fees

53
Q

relocation of a child definition

A

the non temporary absence (more than 60 days) of a child

moved out of state OR more than 75 miles from child’s principal residence, or objecting equal-custody parent

54
Q

relocation statute applies to

A

sole custodian, designated domicilary parent in a joint custody agreement; person who shares equal physical custody of a child; parent sharing equal parental authority; or a tutor of a child born out of marriage

55
Q

to relocate child, must

A

send notice by certified days 60 days before move
other parent may object within 30 days of notice
to overcome objection, parent with equal custody must show that move is in good faith, and is in BIOC

56
Q

initial custody determination jurisdiction test

A

home state test:
state where child lived with parent for 6+ months before proceeding (or since birth if <6mo old)
OR
state which was the child’s home within last 6 month, and where at least one parent still resides

57
Q

home state standard applies unless

A

child and both parents have left louisiana for 6 months
then test is =
child and one parent have significant connection to louisiana AND
there is substantial evidence concerning the child’s care in louisiana

58
Q

jurisdiction to modify custody order

A

the court that made the initial custody determination has exclusive, continuing jurisdiction UNITL
child nor parents live in state
child no longer has significant connection, nor substantial evidence available wihtin state

OR
where domiciliary parent’s parish of domicile is

59
Q

child support considerations

A

consider the needs of the child

and the ability of the parents to support

60
Q

child support is paid until child reaches 18 unless

A

if child hasnt graduated from high school by 18, then can extend to 19 if unmarried, dependent, and full time student in good standing
OR
is developmentally disabled and in full-time secondary school, then till 22
OR
adult with disability who is not capable of self-support and requires substantial care and personal supervision, but only if disability manifested before 18

61
Q

factors to consider amount of child support

A

needs of child and ability of parents to pay PLUS
“income shares” model

parents combined gross income minus preexisting child and spousal support, then follow schedule. parents pay from schedule based in percentage of combined gross income.

minimum child support is $100/month

adjustment for time spent with kid is only granted to nondimiciliary parent with joint custody when has physical custody for more than 73 days a year AND has increased financial burden AND domiciliary parent has decreased burden

62
Q

maternity

A

Proof by preponderance of evidence, mother is person who birthed the child

63
Q

surrogaacy allowed when

A

 Carrier is 25-35 years old
 Has given birth to at least one child
 Attend pre and post birth counseling
 Adhere to medical treatment
 Has medical decisionmaking authority over body
 Intended parents must be a married couple, who exclusively contribte their own gametes to embryo
 Must accept full parental rights and have a succession plan if they predesease
 Agreement must be in writing and signed by carrier and husband if married, and both intended parents
 No compensation other than expenses
 Court approval must occur before transfer
• All parties must be domiciled in La for 180 days before filing
• Must include affidavit of infertility of intended parents by doctor
• Court conducts background checks on all parties before issuing transfer order
• Post birth order will recognize intended parents as parents instead of surrogate
• If any of this stuff fails, then surrogate is considered mother

64
Q

paternity

A

either thru presumption or acknowledgement

OR action by child or father

65
Q

presumption of paternity attaches when

A

child born during marriage or within 300 days of marriage is presumed to be the child of the husband

66
Q

with two husbands, if first husband disavows

A

second husband is presumed to be the father. The second husband can disavow within 1 peremptive year of the judgment of disavowal.

67
Q

disavowal action by husband

A

husband must prove by clear and convincing evidence that he is not the father

must be filed within 1 year of the birth of the child OR the day the husband knew or should have known that he was not the biological father, which ever happened later
unless husband has been living separate and apart for 300 days preceding birth of child, then husband gets 1 year from notice in writing that someone has asserted that he is the father

68
Q

mother can file action to filiate child to second husband how/when

A

Action must be instituted by mother within 180 days of marriage to present husband, AND within 2 years of birth of child
prove by clear and convincing evidence (DNA)
second husband must acknowledge by authentic act
then
child is filiated to the second husband and filiation is extinguished to first husband

69
Q

3-party acknowledgement filiation

A

If blood and tissue testing shows that the bio father is someone who is not the husband or the former husband, then the mother, the presumed father, and the biological father can sign an authentic act acknowledging the actual paternity

Must be done within 10 years of the child’s birth AND within one year of child’s death

70
Q

man marries woman with child not filiated to a man

A

then if husband acknowledges child by authentic act AND mother consents
then presumed to be rather

71
Q

man may acknowledge a child not filiated to another man

A

 by authentic act
 creates presumption that the man is the father
 effects: presumption can only be invoked on behalf of the child. He can get custody, visitation, or be required to pay support. Cannot inherit or file a wrongful death suit.
 Note: if the child is not biologically related to the man signing the acknowledgement, then the acknowledgement is null – would have to go through adoption proceeding.

72
Q

Child’s action to establish paternity

A

 May file this action (or mother may file action on behalf of minor child) even if filiated to another man
 If father is living, must prove paternity by preponderance of evidence
 If father is dead, then must prove by clear and convincing evidence
 For succession purposes only, preemptive period of one year within death of father

73
Q

Father’s action to establish paternity (avowal action)

A

Must prove by preponderance of the evidence

This establishes full, reciprocal filiation rights between father and child

74
Q

adoption of adult rules

A

When adult is adopted by spouse or surviving spouse of person’s parent, then no judicial authorization necessary – adopted person and parent consent in authentic act

In nonstepparent adult adoptions, then adoptive parent and person being adopted must file a joint petition and court can authorize if in best interest of both parties
In any adult adoption, consent of spouse of both adoptive parent and person being adopted must be obtained in authentic act
Effective upon act or judgement’s registration

75
Q

tutorship definition

A

exists when there is no marriage, or marriage has terminated

76
Q

types of tutorship

A

tutorship by nature (parent)
tutorship by will (later dying parent names tutor in a will)
tutorship by effect of law (court selects from direct ascendants, siblings, aunts/uncles, or stepparents - considering BIOC)
tutorship by appointment (when no relatives available, court appoints)

77
Q

qualified tutor must be

A 
	Must be over 18 
	Cant be interdicted 
	Not a felon 
	Not indebted to minor 
	Not adverse to minor in a lawsuit 
	Not infirm 
	Not of bad moral character
78
Q

duties of tutor

A

care for person of child, to rear and educate according to his station in life
has fiduciary duty
must file annual accounting of property of the minor

79
Q

extending tutorship beyond age of 18

A

for someone with less than 2/3 of the average intellectual functioning may be continuing
can be contested by tutee or any other interested party

80
Q

emancipation

A

makes minor a major for all purposes
judicial emancipation -
standard is good cause
only available for 16 and 17 year olds

81
Q

interdiction

A

when a person is incapable fo caring for themselves or administering their estates because of an infirmity, full or limited interdiction is available

82
Q

full interdiction standard

A

when a major person, due to an infirmity, is unable to consistently make reasoned decisions regarding the care of his person AND his property, or is unable to communicate those decisions

83
Q

limited interdiction standard

A

when a major person, due to an infirmity, is unable to consistently make reasoned decisions regarding the care of his person OR his property

84
Q

court appoints ___ to manage interdict’s affairs

A

curator

85
Q

duties of curator to interdict

A

Duty of reasonable care, diligence, and prudence, and must act in the best interest of the interdict
may be removed if in best interest of the interdict
considers:
 Whether curator is misapplying the interdict’s property
 Gross misconduct or mismanagement of duties
 Curator’s incapacity
 Abuse of interdict

86
Q

standard court applies to interdict proceeding

A

clear and convincing evidence

87
Q

absent persons

A

When person has no representative in the state, and cannot be located with diligent effort

then court may appoint curator to manage absent person’s property

88
Q

absent person curator may

A

may administer and dispose of absentee’s property
Curator must file an accounting of the management; and restore the property after the curatorship terminates
After 5 years, curator may ask for a declaration of death – then property disposed through succession

89
Q

if absent person reappears

A

o During the curatorship, curator has property, accounts for it, gives for them
o After declaration of death:
o Then he can recover that property that still exists in the condition found from his successors or their transferees by gratuitous title
 If property was sold, he can recover net proceeds
 If property was encumbered, he can recover the diminution in value
o Recovery of inheritance (ie, sister’s succession)
 can recover inheritance from successors or transferees by gratuitous title
 if it is the inheritance: then absent person gets 2 years to get property back from transferees from onerous title (ie, third party purchasers)

90
Q

timeline for father to file a disavowal action

A

either one year from birth of child
OR
one year from actual or constructive knowledge that child is not his

(must prove by clear and convincing evidence that child is not his)

Code I (3 decks)

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